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Digital Reg of Texas, LLC v. Adobe Systems, Inc.

United States District Court, N.D. California

May 1, 2015

ADOBE SYSTEMS, INC., et al., Defendants.


CLAUDIA WILKEN, District Judge.

On March 9, 2015, the Court awarded Adobe attorneys' fees under 35 U.S.C. § 285 due to Digital Reg's litigation misconduct with respect to two of its fact witnesses: Patrick Patterson and Carl Venters. Docket 815. The Court found Adobe's itemization of attorneys' fees insufficient and ordered Adobe to submit a supplemental declaration providing more detailed billing records. Adobe submitted its supplemental declaration on March 23, 2015. Having considered the parties' briefs and supporting documentation, the Court grants Adobe's fee request with moderate reductions.


Adobe seeks $90, 586.12 in attorneys' fees. This figure includes the initial $45, 838.43 sought in relation to the deposition and testimony of Mr. Patterson and Mr. Venters. In addition, Adobe requests $42, 115.05 for fees incurred in bringing the fees motion and $2, 632.64 for forensic expert fees incurred in relation to Mr. Venters' testimony.

Digital Reg objects to and opposes Adobe's requested fees on a number of grounds. First, Digital Reg contends that Adobe's time entries include block billing and generic descriptions that warrant a reduction of twenty percent. Block billing is the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks. Apple v. Samsung, 2014 WL 2854994, at *2 (N.D. Cal.). Block-billing can provide a basis for calculating a fee award where there is sufficient detail to identify precisely the task accomplished. See PQ Labs, Inc. v. Qi, 2015 WL 224970, at *3 (N.D. Cal.) (citing Stonebrae, L.P. v. Toll Bros., Inc., 2011 WL 1334444 at *8 (N.D. Cal.). Adobe's billing entries are sufficiently detailed to identify the tasks accomplished and to allow the Court to assess the reasonableness of the time spent on those tasks. Moreover, Adobe's fee request accounts for over-inclusive billing entries. Consequently, the Court declines to reduce the award for block-billing.

I. Fees Incurred due to Digital Reg's Litigation Misconduct

Digital Reg argues that Adobe is not entitled to fees for pre-trial depositions under the March 9 order. The Court awarded Adobe "fees incurred in relation to the changed testimony and resulting additional discovery and motion practice associated with Mr. Patterson and Mr. Venters." Docket No. 815. Digital Reg argues that this award should not include fees relating to pre-trial depositions because Digital Reg's misconduct was only associated with its behavior at trial. However, the award is not as narrow as Digital Reg contends. The order granted all fees incurred "in relation to" Digital Reg's misconduct, not only fees directly resulting from the misconduct. This is consistent with Federal Circuit precedent, which requires that the amount of attorneys' fees awarded bear "some relation" to the extent of misconduct. Read Corp. v. Portec, Inc., 970 F.2d 816, 831 (Fed. Cir. 1992). Digital Reg's misconduct undermined Adobe's efforts in preparing for and taking the pre-trial depositions. Moreover, had Digital Reg properly prepared its witnesses and the documents their testimony relied on for the pre-trial depositions, the subsequent issues would not have arisen. Thus, the pre-trial depositions are related to Digital Reg's misconduct.

Digital Reg also argues that Adobe's requested fee amount fails to apply deductions properly for fees it split with another defendant. Adobe's Supplemental Declaration states that it has reduced fees billed under the.0008 billing number by fifty percent to account for the fact that Adobe split these fees with another jointly-represented defendant. A review of Adobe's Supplemental Declaration reveals that the reduction has been properly implemented for all lawyers except Mr. Reines. See Def.'s Suppl. Decl. ¶ 6, Docket No. 819. Adobe requests $21, 720.38 for work conducted by Mr. Reines. However, taking into account the fifty percent reduction and the 69.92% fee cap in place during trial, Adobe is only entitled to $16, 399.125. Thus, $4, 932.86 must be deducted from Adobe's fee award.

Digital Reg also challenges Adobe's inclusion of work related to witnesses other than Mr. Patterson and Mr. Venters. Adobe contends that it has discounted its request to address this issue. A review of the Supplemental Declaration reveals that Adobe has accounted for over-inclusive billing by Mr. Pradhan, Mr. Bonini, and Ms. Han. For these lawyers, Adobe only applied a certain percentage of the total hours billed towards the fees request. See id. at ¶¶ 17, 23, and 25. However, for other lawyers, Adobe has failed to apply a similar deduction. See id. at ¶¶ 6, 11, and 27 (including preparations for Farley and Ornstein depositions). A three percent reduction in the fee award is warranted to account for Adobe's failure to account for over-inclusive billing.

Thus, the Court awards $39, 678.40 for all fees incurred in relation to Mr. Venters and Mr. Patterson. This figure represents a $4, 932.86 reduction to account for deductions under the.0008 billing code and an additional three percent reduction to account for fees requested for unrelated work.

II. Forensic Experts Fees

Digital Reg opposes Adobe's inclusion of fees for forensic experts employed to gather documents and verify the completeness of the collection of documents from Mr. Venters. Adobe did not include fees for forensic experts in its initial motion for attorneys' fees. The Court ordered Adobe to submit a supplemental declaration to provide more detailed billing information to support its fee request. Adobe was not authorized to include new fees in the declaration.

Even if Adobe had included expert fees in its initial request, they are not recoverable under 35 U.S.C. § 285. Section 285 allows for the award of attorneys' fees only. The Federal Circuit has held that § 285 does not authorize the award of expert witness fees. Amsted Indus. Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 377 (Fed. Cir. 1994). The Court sees no reason and Adobe provides no authority to suggest that forensic experts should be ...

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